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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Manchester District Court

No. 2003-187

In re Juvenile 2003-187

Argued: January 14, 2004

Opinion Issued: April 30, 2004

Peter W. Heed, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and
orally, for the defendant.

Broderick, J. The juvenile appeals from an order of the Manchester District Court (Champagne,
J.) finding him delinquent for falsifying physical evidence, see RSA 641:6 (1996).
We reverse.

The record supports the following facts. On October 23, 2002, Officer Kevin Covie of
the Manchester Police Department was on duty as the school resource officer at Manchester
West High School. During a change of classes, he observed the juvenile speaking with
several other people in a congested hallway crowded with almost two hundred people, and
holding what appeared to be a pack of cigarettes. Officer Covie knew that the juvenile was
fifteen years old and not permitted to possess tobacco, see RSA 126-K:6 (Supp.
2003). Officer Covie decided to approach the juvenile to investigate further. When he was
approximately thirty to forty feet away, he and the juvenile made eye contact. The
juvenile then threw the cigarette pack onto the floor in the officers direction and
fled through the crowded hallway. Officer Covie walked over to the cigarette pack and
retrieved it. Later that day, he took the juvenile into custody. Testing revealed that the
cigarette pack contained .19 gram of marijuana.

Officer Covie filed petitions alleging the delinquency of the juvenile, based upon
possession of marijuana (which is not at issue in this appeal) and falsifying physical
evidence. On the latter count, the petition alleged that "[b]elieving . . . an
official investigation was about to be instituted, [the juvenile] purposely discarded a
pack [of] . . . cigarettes with the purpose to impair its verity and availability . . .
during the course of [the] investiga[tion]." Following a hearing, the trial court
found that the State had proven its case beyond a reasonable doubt. On appeal, the
juvenile contends that the trial court erred because the State offered insufficient
evidence to support the finding of delinquency.

To prevail on a sufficiency of the evidence argument, the defendant must show that no
rational trier of fact, viewing the evidence in the light most favorable to the State,
could have found him to be delinquent beyond a reasonable doubt. SeeState v.
Briggs, 147 N.H. 431, 433 (2002). RSA 641:6 reads, in pertinent part:

A person commits a class B felony if, believing that an official proceeding . . . or
investigation is pending or about to be instituted, he . . . [a]lters, destroys, conceals
or removes any thing with a purpose to impair its verity or availability in such
proceeding or investigation . . . .

The juvenile contends that under this statutory provision the State had to prove,
beyond a reasonable doubt, three elements of the offense in order to establish his
delinquency. The first element, that he believed an official investigation was about to be
instituted, is not at issue in this appeal. With respect to the remaining elements, the
juvenile argues that the State offered insufficient evidence that he "altered,
destroyed, concealed, or removed the package of cigarettes," and that, in doing so,
he "acted with the requisite purpose." At the outset, the State contends that
because the juveniles notice of appeal refers only to the element of purpose, he
waived the issue of actusreus. We disagree.

The specific question raised in the juveniles notice of appeal reads:
"Whether the Court erred in finding beyond a reasonable doubt that [the juvenile] had
the purpose to impair the verity and availability of the pack of cigarettes in Officer
[Covies] investigation?" The State does not contest that the juvenile raised
the sufficiency of the evidence on actusreus before the trial court. In
addition, it is clear that the juvenile has briefed the issue. "[Supreme Court Rule
16(3)(b)] provides that the question addressed in a brief shall be the same as the
question previously set forth in the appeal document although the latter will be deemed to
include every subsidiary question fairly comprised therein." In re "K",
132 N.H. 4, 16 (1989) (quotation, ellipsis and brackets omitted).

Under the facts and circumstances of this case, the sufficiency of the evidence of the
juveniles actusreus is inextricably linked with, and fairly comprises
a subsidiary question to, the ultimate issue of the sufficiency of the evidence as to the
juveniles mensrea with regard to that action. SeeSamyn-DElia
Architects v. Satter Cos. of New England, 137 N.H. 174, 177 (1993); seealso
RSA 626:2, II (a) (1996) ("A person acts purposely with respect to a material element
of an offense when his conscious object is to cause the result or engage in the conduct
that comprises the element."). Consequently, we find that the juvenile has preserved
the issue of the second element of the statute and we address it.

The juvenile argues that the State offered insufficient evidence to prove that he
"altered, destroyed, concealed, or removed the package of cigarettes" when he
threw the pack containing contraband onto the floor of the crowded high school corridor
and fled from the police. In its brief, the State does not argue that the juvenile either
altered or destroyed the evidence at issue, but focuses its argument on the premise that
the evidence was "concealed or removed." At oral argument, however, the State
agreed that in order to reach the sufficiency of the evidence claim, this court need only
construe the statute and interpret the word "conceal."

Because resolution of this issue requires statutory interpretation, which is a matter
of law, we review the trial courts decision denovo. SeeState
v. Boulais, 150 N.H. 216, 218 (2003). This court is the final arbiter of the intent of
the legislature as expressed in the words of a statute considered as a whole. State v.
Melcher, 140 N.H. 823, 825 (1996). We construe provisions of the Criminal Code
according to the fair import of their terms and to promote justice. See RSA 625:3
(1996); Melcher, 140 N.H. at 825-26.

While the statute does not define "conceal," the dictionary defines it to
mean: "to prevent disclosure or recognition of: avoid revelation of: refrain from
revealing: withhold knowledge of: draw attention from: treat so as to be unnoticed . . .
to place out of sight: withdraw from being observed: shield from vision or notice[.]"
Websters Third New International Dictionary 469 (unabridged ed. 2002). The
dictionary also enumerates synonyms for "conceal" as "hide, bury, secrete,
cache, screen, ensconce." Id.

Ascribing the plain and ordinary meaning to the word "conceal," we fail to
see how the actions of the juvenile, given the totality of the circumstances in this case,
fit within its meaning. After the juvenile made eye contact with the police officer coming
toward him, he threw the cigarette pack to the floor in the officers direction and
ran away through the crowded hallway. The police officer then walked over to the cigarette
pack and retrieved it. The juvenile did not prevent Officer Covie from recognizing and
retrieving the cigarette pack or discovering its contents; neither did he place the pack
out of the officers sight or shield it from his vision in any manner, as evidenced
by the ease with which Officer Covie retrieved it. The pack was not hidden, buried or
secreted from Officer Covies vision or attention. Instead, the juveniles
actions, given the totality of the circumstances in this case, constituted a simple
abandonment of the cigarette pack, an action not proscribed by the statute.

The juvenile may have intended to make it less likely that the cigarette pack would be
associated with him or come to Officer Covies attention by ridding his hands of it
and abandoning it in the crowded hallway. It is important, however, not to confuse the
juveniles intent with his physical actions. RSA 641:6 uses the term
"conceals" to define the actusreus of the offense. In addition to
the actusreus, the statute also requires proof of a culpable mental
statehere, the juveniles intent to "impair [the] verity or
availability" of the evidence. That the juvenile may have intended to make it more
difficult for Officer Covie to detect the contraband does not mean that the juvenile
concealed the contraband when he abandoned it. SeeVigue v. State, 987 P.2d
204, 210 (Alaska Ct. App. 1999). Indeed, under the totality of the circumstances in this
case, the juvenile did not conceal the contraband.

The juvenile cites cases from other jurisdictions for the proposition that discarding
illegal drugs in the sight of the police does not fall within the ambit of the statute.
The State counters that the juvenile did not "merely discard" the cigarette
pack. Instead, the State argues that because there were roughly two hundred people in the
hallway area, the juvenile "was not discarding drugs in the sight of the police, but
was trying to conceal them from sight by throwing them to the floor while standing in a
crowd of people, and then running away." The statute is clear that an actor commits a
class B felony if the person "conceals" something with the purpose to impair its
verity or availability in a pending official investigation. See RSA 641:6, I. Here,
the contraband was never concealed. The police officer saw the juvenile throw the
cigarette pack to the floor, saw it come to rest, and was promptly able to retrieve it. At
most, the juvenile may have made a failed attempt to conceal the pack, see RSA
629:1 (Supp. 2003).

Further, to support its contention that "[t]he fact that the juveniles
actions did not have the desired effect of dissociating himself from the evidence should
not be controlling," the State cites Commonwealth v. Morales, 669 A.2d 1003,
1006 (Pa. Super. Ct. 1996) ("[The statute] does not require proof that the evidence
was concealed outside the presence of the police or that it was completely
destroyed."). We believe that Morales is easily distinguished from the instant
case. In Morales, the defendants conviction for tampering with physical
evidence was affirmed where he swallowed a packet of contraband while being apprehended by
the police subsequent to an alleged illegal drug transaction. Morales, 669 A.2d at
1004-05. On appeal, the defendant contended, among other things, that there was
insufficient evidence to sustain the conviction because he could not have concealed
evidence when he placed the packet in his mouth in the presence of the police. Id.
at 1005. The appellate court disagreed, stating: "It is absurd to suggest . . . that
[the defendant] did not attempt to conceal the packet simply because the act
of concealment was done in the presence of the officers." Id. at 1006. We
believe there to be a significant gulf between swallowing a packet of contraband and
abandoning a package of contraband by throwing it to the floor in the direction of an
approaching police officer, who then retrieves the package. While we need not decide here
if the former action falls within the ambit of our statute, we agree that such action at
the very least places the packet out of sight, withdraws it from being observed, and hides
or secretes it, seeWebsters Third New International Dictionary 469.
In contrast, the latter action in this case accomplished none of these.

In addition, the State argues that the juveniles actions were "not different
in kind, but merely in degree, from the acts found to constitute tampering with evidence
in State v. Mendez, 785 A.2d 945 (N.J. Super. Ct. App. Div. 2001)." We
disagree. In Mendez, the appellate court affirmed the defendants conviction
for tampering with physical evidence where he had held a plastic bag "containing a
white powdery substance . . . outside the window of a moving car during a police chase,
allowing the substance to dissipate into the air and thus causing it to become unavailable
as evidence." Mendez, 785 A.2d at 954. The court cited cases from other
jurisdictions that consistently held

that simply throwing away contraband as the police approach does not constitute
concealment that will support a conviction for evidence tampering, but that swallowing
drugs or other conduct that makes contraband unavailable to the police constitutes
destruction of evidence that will support a conviction for this offense.
. . . Such conduct does not constitute mere abandonment of evidence . . . .

Id. (quotations and citations omitted). In Mendez, the States theory
was that the defendant had altered or destroyed the white powdery substance by releasing
it into the air. Id. at 953. In the instant case, the juveniles abandonment
of the cigarette pack neither altered nor destroyed it, and did nothing to prevent its
availability to the police. As such, his actions were significantly different, both in
kind and in degree, from those of the defendant in Mendez.

In sum, we hold that the actions of the juvenile, given the totality of the
circumstances in this case, do not demonstrate that he concealed the pack of cigarettes.
Consequently, we find that the defendant has shown that no rational trier of fact, viewing
the evidence in the light most favorable to the State, could have found delinquency beyond
a reasonable doubt. As such, the trial court erred as a matter of law in finding that the
State had proven its case beyond a reasonable doubt.

Because our holding concerning the second element of the statute is dispositive in this
case, we do not reach the third element regarding purpose.